We all recognize the value of a subdivision plat, but in the old days, paying a surveyor cut into the revenue.?ÿ
Perhaps the most common was the strip transfer and accumulative deed, " Commencing at the west line of P street and the north line of G street, thence north 6 rods, thence west 14 rods, thence south 6 rods, thence east 14 rods to beginning."
The next one begins 6 rods north of there, etc... Homes are built.
Assumptions:
Someone actually taped out the deed since money was paid
Shortages, exterior boundaries, etc. Ignored?
Were front monuments set then, or later? There are no rears. Fronts measure as well as property owners can do. Most are in. Was the same cloth tape used??ÿ
There is 1.5 feet shortage along the rear, no occupation. I know the rules state they get measured out in sequential order, but that leaves the last owner holding it all.?ÿ
All original owners are dead for several generations.
Is there a principal/s of fairness that would justify pro-ration? Or is the rule absolute??ÿ
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No rule is absolute.?ÿ However, pro-rating distances assumes one Surveyor did the original layout.?ÿ If the block is short then that is evidence that the Surveyor's tape was short and every lot must be presumed to have a proportionate shortage.
If each landowner laid out their own lot then that undermines the reasoning behind pro-rating distances.?ÿ There is more justification if all of the Deeds were delivered within a short period of time but generally the presumptions are against it.
The Senior owner has a strong case for full measure.
You can't transfer what you don't have.?ÿ
The last?ÿpurchaser can purchase no more than the remainder. You have to resolve each conveyance in sequential order to determine what land was transferred - when you get to the last purchaser - the only question is - did they get the full remainder??ÿ
It's a sad thing for the last purchaser when there is a less land than expected, but unless you can show there was a consistent error in the measuring device (chaining index) over the years on each sequential transfer?ÿ(extremely unlikely) then the last purchaser is left with the shortage.?ÿ
Think about it from an earlier parcel purchaser perspective - why should they get less than what they bought just because the original owner sold their remainder representing it as more than they actually had.?ÿ?ÿ?ÿ
I've had the sad experience to see this where the original owner sold parcels totaling to more land than they had and the widow discovered that their longtime home was on one of the purchasers land. She had nothing - no land and no house. Fortunately, the purchaser was extremely gracious and allowed her to remain in the house for the rest of her days. THIS is one of the dangers of conveying land without a survey.
Knew a surveyor that only would set wood stakes, most were a cut sapling, and tell the land owners that they should put something in its place that would last like a pipe or something.
Then there was a developer that stopped using any surveyor after he had his proposed subdivision plat finished showing all streets, lots and dimensions. Then he would start advertising and selling lots at $40 down and $40 a month per acre.
Many things from the past have no guarantee at all.
When we inject emotions and our sense of fairness into Survey decisions things can go horribly wrong. We apply equity where the law demands it, but even then the emotion has no place. Like I tell my kids, 'Fair' is that thing every fall at the Expo. Justice is the word you are looking for...
Are monuments called for in the deeds?
Another way to look at it is that the last parcel sold was, prior to sale, the remnant of the subdivider's holding.?ÿ Who better to absorb the shortfall than the original vendor??ÿ?ÿ
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No rule is absolute.?ÿ However, pro-rating distances assumes one Surveyor did the original layout.?ÿ If the block is short then that is evidence that the Surveyor's tape was short and every lot must be presumed to have a proportionate shortage.
If each landowner laid out their own lot then that undermines the reasoning behind pro-rating distances.?ÿ There is more justification if all of the Deeds were delivered within a short period of time but generally the presumptions are against it.
The Senior owner has a strong case for full measure.
There is no record of a survey, despite there being decent county records. However, there was no obligation to record, just custom. One surveyor could have laid it out, but the front irons aren't that good; they're a foot or so long in a hundred. That tells me that no professional did it ("No one's land ever gets smaller", especially for the landowners). So, it's likely there was no surveyor involved. I have an old surveyor's cloth tape, but I'd wager there wasn't many cloth tapes in existence back then, and no layman had an accurate tape. That came with a bill.
The front irons have laid there for an unknown time, they're generally well known about, but I strongly doubt anyone ever checked anything; again, that's what we do. It may be a useful exercise to think about how far the measurements could be off without throwing them out completely. I am already suspicious of them being placed by one or the other neighbors "in good faith".?ÿ ??!!
If I'm inclined to lay it out according to measurements only (!), then the front irons have to go. I dislike the phrase "bona fide rights", but they have some history of acceptance.
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Are monuments called for in the deeds?
No; I'd have mentioned that.
Considered that this was a more upscale part of the village, I'm frankly surprised that everyone took it as casually as they did. There are some nice homes along there, and great lots.
You have gotten some good comments already, but I think equity and proportioning are sometimes misapplied, so here are two more. ?ÿ
- Although there are some rare occurrences when surveyors can apply solutions based on equity, it is usually a principle only landowners and courts are empowered to apply. Equity is not generally the reason we proportion, it is a happy side effect, that I think tricks us into doing it too often. The reason we proportion is to retrace the original surveyor the best we can. When there is no other evidence all we do is assume the original surveyor precisely measured the lots, meaning any failure to accurately measure was uniform across the subdivision. Therefore, our proportioned positions are our best guess of where the corners originally were, not the position we think would be most fair to all.
- Proportioning sequential conveyances is not necessarily equitable. Think about the first parcel sequentially conveyed. They have a metes only deed that says they own a parcel XXX feet wide. The only way to locate that parcel is to measure XXX feet. If we portioned sequential conveyances, the only way to be sure of the location would be to wait until the original grantor conveyed all his land, and then check the measurements. That could take more than a lifetime, and would subject the grantee to errors is measurement made outside his chain of title. It isn??t fair to the last buyer, but surprises are avoidable by not buying or selling without a survey. ?ÿ
The irons set at the nominal front corners are strong evidence that those are the original corners especially if the possession lines conform to them.
The main purpose of the descriptions is to identify the tract being conveyed; they are also useful for locating the boundaries keeping in mind that may have already been done in good faith.?ÿ If the subdivider laid out the lots and delivered possession using the irons as the corners then they control.
Good faith reliance and bona fide rights are often confused with bona fide belief. They can both fall apart if they aren't founded in some connection to an original creating survey.
If the owners themselves set those pins and the neighbor knew about it your job just got easier. It sounds like you will end up with ambiguity no matter how you slice it.?ÿ
Fix the points that have one reliable location then quantify the range of possibilities for the other corners. Extract a solution from the effected owners and memorialize it per State law.
Dont forget to get paid appropriately for your efforts...
Run into this too frequently with 1800's era subdivisions. ?ÿAssumed aliquot distances appear on the plat along with perpendicular lines. ?ÿNo surveyor ever measured the perimeter and applied truth in the early days. ?ÿFinally a surveyor comes along and arrives at the location of one tract, with exact dimensions agreeing with the plat. ?ÿThe next surveyor to come along grabs that survey and works off of it. ?ÿEventually a tract needs surveyed along the original perimeter ?ÿand only then is the excess or shortage discovered. ?ÿToo late for the tracts surveyed previously. ?ÿOne must remember the field methods used and the looooooooonghand method of calculating numbers.
Assuming the area is devoid of monuments (or other evidence), I would treat it as?ÿa junior/senior exercise to begin with. I've had parcels that start out senior, become junior and then have a strip in the middle 5' wide that's senior to everything before it's all said and done.
Old monuments (called for or not)?ÿget a lot of presumed acceptance. They are presumed correct, the standard of proof is?ÿwith the rejector, you need a really good reason to do so and math isn't much of a reason. I can't recall sequential transfers I ever proportioned. It never?ÿworked that way.
